D.M. v. Walgreens Pharmacy

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4500-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 3, 2008

Before Judges Fuentes, Grall and Waugh.

Plaintiff D.M. appeals from the order of the Law Division dismissing her cause of action against defendant Walgreens Pharmacy. In her complaint, plaintiff alleged that Walgreens created a hostile work environment by failing to properly respond to the actions of co-worker defendant "Soner" Dorval*fn2 , in violation of the Law Against Discrimination, N.J.S.A. 10:5-1 to -42. Plaintiff also claimed that Walgreens retaliated against her when she reported the harassment by reducing her work hours, resulting in her constructive termination.

Plaintiff argues that the trial court erred by: (1) discounting evidence that defendant failed to take reasonable action to prevent the assault; (2) holding that the Workers' Compensation Act, N.J.S.A. 34:15-8, barred her claim; (3) applying an incorrect standard for sexual harassment; (4) discounting workplace rumors; and (5) finding that Walgreens did not reduce plaintiff's work hours. After reviewing the record before us, we affirm the trial court's order dismissing the hostile work environment claim. We reverse, however, the dismissal of the retaliation claim, and remand this matter for trial.

I.

Plaintiff began working at a Walgreens in Paterson as a service clerk in November 2003. Her duties included working as a cashier, cleaning, and "fixing" the aisles. Her work-hours varied from week to week. Assistant Manager Gary Menina was her direct supervisor. At the time of her deposition in 2006, plaintiff lived with her mother, her teenage sister, a cousin, and her three-year-old son. She graduated from high school in June 2004 and attended a community college.

Soner Dorval was one of plaintiff's co-workers at Walgreens. He started to work at the Paterson Walgreens store as a full-time clerk in February 2003. At the time of the incident in February 2004, Dorval was thirty-seven years old, married and had one child; plaintiff was seventeen. Dorval is five feet seven inches tall and stocky; plaintiff is three inches shorter.

According to plaintiff, on February 10, 2004, after the store closed at around 10:30 p.m., she and Dorval were "putting back returns." At one point, Dorval approached her, complimented her appearance, and said: "I'm leaving. So give me a hug." She described the subsequent events as follows:

I gave him a hug and he tried to kiss me and I turned my cheek and I remember him grabbing my face towards him, okay, pulling my face in trying to kiss me on the mouth. And I said, No, no, stop. . . . [H]e started saying, Oh, you look sexy. You look good. I want you, and things like that.

And then he put his hand on my butt.

And I said, Stop, stop. What are you doing?

And I pulled his hand off trying to pull away from him.

When Dorval loosened his grip, plaintiff began to walk away, but he "grabbed [her] back" and "lift[ed] [her] up in the air. He put one of his arms between [her] underarm and [her] breast area" and put his other hand "between [her] legs and he kept saying, I want you." Plaintiff continued to tell him to stop. Dorval finally put her down, and she left.

Dorval gave a totally different version of the event. According to Dorval, he and plaintiff were joking about whether he loved her or whether she was too skinny; he admitted lifting plaintiff up to see if she was heavy, but said that she did not protest. He denied complimenting her appearance, asking her for a hug, kissing her or touching her breast, buttocks, legs or crotch, or sexually harassing her in any way.

Plaintiff immediately reported the incident to an off-duty police officer who was working at the store. Although the officer told her to fill out a police report, plaintiff declined, claiming that she was scared and did not want to discuss it with her mother. However, even after she told her mother, and contrary to her mother's advice, plaintiff did not formally report the incident to the police.

A few days later, plaintiff told co-workers Carla Reyes and Jessica Santana about the incident with Dorval. Reyes told plaintiff that Dorval had also tried to kiss her. According to plaintiff, Reyes told her that she reported the harassment to assistant manager Hector Perez. In a handwritten "Voluntary Statement" dated February 19, 2004, Reyes indicated that, while at her locker at work, Dorval asked her for a kiss. She responded: "What? Are you crazy?" He then took her arm and tried to kiss her, but she told him to stop. Dorval did stop and he apologized to Reyes several times. She never reported the incident, "since [she] knew what happened to [D.M.]."

Reyes reiterated this incident, which occurred in January 2004, in a certification. She added, however, that she "never told anyone in management at Walgreens about this incident until [she] was interviewed by Walgreens' Loss Prevention in February 2004." In a supplemental certification, Reyes confirmed that she was aware that, under defendant's policy against harassment, she could report an incident without fear of retaliation. According to Reyes, she did not report the incident with Dorval because "he seemed genuinely sorry" and she did not want him to be terminated.

When plaintiff told co-worker Santana about Dorval's attack, she said: "He did the same thing to me. He touched my breasts and I slapped him in the face." Santana told plaintiff that she reported the incident to management, and that management told Dorval to stay away from her. Santana certified that, in November 2003, while working at the Walgreens store in Paterson, Dorval asked her to have sex with him for one dollar. "[She] told him that was extremely inappropriate, and that [if] he ever said anything like that to [her] again, [she] would slap him." Dorval apologized and "never said anything like that to [her] again." She chose not to report the incident to Walgreens "because he seemed genuinely sorry for his actions and [she] did not want management to make a 'big deal' out of his one remark."

Walgreens management denied any knowledge of Dorval's behavior. Perez, an assistant store manager since 2001, certified that he supervised Santana and Reyes when their shifts overlapped; neither one "ever told [him] about sexual harassment or any other inappropriate conduct by Soner Dorval." Steven Johnson, manager of the Walgreen's store in Paterson during plaintiff's employment, was not aware of any other incidents or complaints involving Dorval sexually harassing an employee.

Plaintiff formally reported the incident with Dorval to her supervisor Menina a few days after it occurred. Store manager Johnson referred the complaint to Mike Hourigan of Walgreens' loss prevention department, who was charged with formally investigating the allegations. Hourigan met with Dorval on February 16, 2004. According to Hourigan's report, Dorval admitted that he was guilty, but "denied being forceful." He claimed that he and plaintiff were just "fooling around." Hourigan, Johnson and the director of employee relations conferred and decided to terminate Dorval for inappropriate behavior. His last day of work was February 19, 2004. Plaintiff never worked with him again.

Walgreens' "Policy Against Harassment and Discrimination" was included in its Personnel Policy Manual. It defined sexual harassment, described the conduct that constituted harassment, and told employees that they should report any perceived harassment to their store manager or other specified managers. The policy promised a prompt, confidential investigation, with the result communicated to those involved. The policy also made clear that retaliation against a worker who filed a complaint was "prohibited by law," that Walgreens did not tolerate retaliation, and that anyone who was found to have retaliated would be subject to discipline, up to and including termination.

According to store manager Johnson, "Walgreens Policy Against Harassment and Discrimination was posted in the Paterson store and reviewed with employees during orientation at the time of hire. The Policy was also available to them on line at a computer terminal in the store." In supplemental certifications, both Reyes and Santana confirmed that they received and read defendant's Policy Against Harassment and Discrimination at the orientation.

By contrast, plaintiff only recalled a poster that said that "sexual harassment in the workplace is against the law." She was not aware of any Walgreens' policies or where to find them, and the only training that she recalled was how to work the cash register. Dorval recalled general training about Walgreens' policy when he began working there, but nothing specific about sexual harassment.

In opposition to Walgreens' motion for summary judgment, plaintiff certified that while she was employed at Walgreens, she heard rumors about a male assistant manager and a female hourly employee having an affair. Santana certified that, while she was employed by Walgreens, "rumors circulated that the manager of the 18th Street, Paterson, N.J. store, 'Mr. Genaro' was having a sexual relationship with a female employee, 'Ana' who received preferential treatment because of the affair." No other evidence was presented on this issue.

II.

Against these facts, we will now address plaintiff's argument pertaining to the trial court's dismissal of her cause of action based on a hostile work environment. Plaintiff contends that the judge improperly made fact findings and credibility determinations adverse to her on her sexual harassment claim. Plaintiff argues that Walgreens failed to take reasonable steps to prevent the harassment, because: (1) it was aware that Dorval had harassed other employees; and (2) it did not publicize and implement its harassment policy. We disagree.

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law."

R. 4:46-2(c).

An issue of material fact is "genuine" if: the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. . . . Credibility determinations will continue to be made by a jury and not the judge. . . .

[W]hen the evidence "is so one-sided that one party must prevail as a matter of law," the trial court should not hesitate to grant summary judgment.

The Supreme Court in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (1993), recognized a hostile work environment cause of action as a violation of the prohibition against workplace discrimination under N.J.S.A. 10:5-12(a). Addressing harassment by a supervisor, the Court in Lehmann held that the employer is strictly liable for equitable damages and relief, and could be vicariously liable for compensatory damages under agency principles. Id. at 592.

The court considered an employer's liability for harassment by a non-supervisory co-worker in Heitzman v. Monmouth County, 321 N.J. Super. 133, 145-46 (App. Div. 1999):

[U]nder agency principles, an employer is not generally liable for harassing conduct by co-workers, "[b]ecause employers do not entrust mere co-employees with any significant authority with which they might harass a victim." Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1032 (7th Cir. 1998). Consequently, when a co-worker engages in harassing conduct, the employer is liable only if "management-level employees knew, or in the exercise of reasonable care should have known, about the campaign of harassment." Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir. 1986).

Here, the record amply supports the trial court's findings. It is clear that Walgreens was unaware of Dorval's proclivity to sexually harass his female co-workers. All of the women who claimed to have been attacked or harassed by him did not report the incident to management. Plaintiff's hearsay reports, contrary to the certifications of the individual employee, are insufficient to raise a genuine fact issue. It is equally clear that once the issue was brought to its attention, management promptly investigated the allegations and thereafter took decisive action terminating Dorval. Cf. Velez v. City of Jersey City, 358 N.J. Super. 224, 228-31 (App. Div. 2003), aff'd, 180 N.J. 284 (2004) ("None of plaintiff's supervisors investigated her allegations or took any remedial measures.")

The question of Walgreens' policy against sexual harassment in the work place presents a different issue. The Court in Lehmann, supra, held that negligence was "[a]nother basis for employer liability under agency law." 132 N.J. at 621. The Court held that: "In light of the known prevalence of sexual harassment, a plaintiff may show that an employer was negligent by its failure to have in place well-publicized and enforced anti-harassment policies, effective formal and informal complaint structures, training, and/or monitoring mechanisms." Ibid.

The Court explained that the absence of preventative mechanisms does not "automatically constitute[ ] negligence," but is "strong evidence of an employer's negligence." Id. at 621-22. Similarly the presence of preventative mechanisms does not automatically constitute the absence of negligence, but it "provides some evidence of due care on the part of the employer." Id. at 621.

Here, the record shows that Walgreens had a well-publicized, comprehensive anti-sexual harassment policy. According to two independent witnesses, management took affirmative steps to disseminate the policy through a formal orientation program. Although plaintiff and Dorval claim that they were not given such an orientation, this alone is insufficient to defeat summary judgment. We are therefore in agreement with the trial court that plaintiff failed to state a valid claim in this respect.

Finally, we find no support for plaintiff's claims that the trial court based its decision, at least in part, on the Workers' Compensation Act, N.J.S.A. 34:15-8. As Walgreens points out, the workers' compensation bar precluded only plaintiff's claim for sexual assault, a claim she withdrew. The trial court did not based it ruling dismissing the hostile work environment cause of action on the workers' compensation bar.

Finally, relying on Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286 (2006), plaintiff argues that the motion judge improperly discounted the issue of workplace rumors about an affair between a Walgreens manager and an hourly employee. Plaintiff's reliance on Fitzgerald is misplaced.

In Fitzgerald the Court approved the admission of office gossip that a former employee was performing sexual acts for pay with the harasser, the owner and president of defendant company. Id. at 314-17. The Court said that the gossip was admissible not to prove the truth of its content, but because it was "relevant to establishing the general character of the workplace, to the effectiveness of the sexual harassment policy, and to rebutting witness testimony offered by defendants that the atmosphere of the office was subdued." Id. at 317.

Here, the rumor of a consensual affair did not accomplish any of these things. It did not tend to show that the general character of the workplace was open to harassment. It did not pertain to the sexual harassment policy. It did not counter defendant's testimony that the store atmosphere was subdued, because defendant offered no such testimony. In short, the motion judge properly discounted plaintiff's evidence of a rumor of a consensual affair.

III.

We will now address the issue of retaliation. Plaintiff claims that she spoke to her supervisor Menina two or three times after the incident with Dorval, to request more work time. The second time, Menina told her that he would discuss the matter with the store manager. A few days after, Menina told plaintiff that "they really don't have a lot of hours right now." At that time plaintiff had been working only one day a week, for two or three weeks.

About two weeks before she left (on March 19, 2004), plaintiff became aware that two new employees were working the same shift that she was working. Plaintiff complained to Menina, asking why new people had been hired to do the same work that she was doing on the same shift, while reducing her hours and refusing her requests for additional hours. According to plaintiff, she left her employment because she "wasn't getting any hours" and she "felt uncomfortable being there." She also noticed a change in the attitudes of her co-workers. We "used to laugh, play, [and] joke around." After the assault, no one talked to her "unless they had to." Management, in particular Perez, participated in this "silent treatment."

According to store manager Johnson, plaintiff did not have a set schedule because she was a part-time employee; her work hours varied from week to week, and her hours were determined by her availability. Plaintiff averaged from twelve to twenty or twenty-five hours each week. When she worked less than twelve hours in a week, it was at her request.

Johnson admitted, however, that Walgreens hired two part-time clerks for the Paterson store who started on February 3 and February 28, 2004. The Paterson store also added two full-time clerks in February and March 2004. He denied that he or any other manager intentionally reduced plaintiff's work hours, or that she "was given the cold shoulder" after her complaint.

According to defendant's records, plaintiff was assigned the following hours per week in 2004:*fn3

PAY PERIOD ENDINGNUMBER OF HOURS
January 915.25
January 1612.00
January 2314.75
January 3017.00
February 627.50
February 1322.75
February 2014.75
February 2718.75
March 525.00
March 1210.00
March 1913.00

Against these facts, the motion judge found no evidence that defendant reduced plaintiff's hours after her complaint. He noted that: "Time records show that her hours varied very little and additional holiday hours account for the increased time in the weeks before she made her complaint." Thus, the judge credited store manager Johnson's testimony that any decrease in plaintiff's hours was due to her unavailability.

Plaintiff asserted that she repeatedly asked Menina for more hours, and he relayed the message that "they [meaning Johnson] really don't have a lot of hours right now." This directly contradicts Johnson's testimony. In this light, we are satisfied that the motion judge improperly accepted Johnson's version as the more credible account of what actually occurred. On a motion for summary judgment, the judge does not make factual findings from competing versions of events. Brill, supra, 142 N.J. at 540. Plaintiff, as the party opposing the motion, was entitled to a favorable view of her evidence, which the judge did not afford her. See ibid.

Accepting plaintiff's version, a rational jury could find retaliation commenced in these last two weeks, after Walgreens hired and trained new employees. We recognize that Walgreens contends that plaintiff cannot rely on the new employees "as comparators" because she has not shown that they were available to work during her shift, or that they were not hired due to "turnover." However, plaintiff testified that she saw two new employees working during her shift. She is entitled to a favorable view of her evidence and its reasonable inferences. See ibid.

The LAD prohibits "reprisals against any person because that person has . . . filed a complaint . . . in any proceeding under this act." N.J.S.A. 10:5-12(d).

In order to establish a prima facie claim for retaliation under the LAD, plaintiff must demonstrate: (1) that she engaged in protected activity; (2) the activity was known to the employer; (3) plaintiff suffered an adverse employment decision; and (4) there existed a causal link between the protected activity and the adverse employment action. [Young v. Hobart West Group, 385 N.J. Super. 448, 465 (App. Div. 2005).]

Addressing retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-3(a), the United States Supreme Court has recently rejected this definition of retaliatory action and broadened its scope to include any "materially adverse" employer action that would likely deter a reasonable victim of discrimination from making a complaint. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed. 2d 345, 359-60 (2006). The Court explained that this would accomplish the goal of the anti-retaliation provision, which is to prevent an employer "from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees." Id. at 63, 126 S.Ct. at 2412, 165 L.Ed. 2d at 356.

The Court in Burlington cautioned that it is "important to separate significant from trivial harms." Id. at 68, 126 S.Ct. at 2415, 165 L.Ed. 2d at 359. "[P]etty slights or minor annoyances that often take place at work and that all employees experience" are excluded. Id. at 68, 126 S.Ct. at 2415, 165 L.Ed. 2d at 360. Our Supreme Court "has looked to federal law as a key source of interpretive authority" in its analysis of LAD claims. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 97 (1990). Because the goal of the anti-retaliation provision of the LAD is identical to its Title VII counterpart, retaliatory conduct should include any employer conduct that would deter enforcement of the LAD, in accordance with the holding in Burlington.

Here, a reduction in plaintiff's work hours constitutes a tangible diminution of her opportunity to work and earn as much as she had previously. In addition, plaintiff produced sufficient evidence to raise a fact issue about a causal connection between her complaint and the reduction of her hours. A "[c]ausal connection may be demonstrated by evidence of circumstances that justify an inference of retaliatory motive." Romano, supra, 284 N.J. Super. at 550. Although "temporal proximity" alone is ordinarily insufficient to support an inference of causation, it is a factor in establishing a prima facie case of retaliation under the LAD. See Young, supra, 385 N.J. Super. at 467.

Here, plaintiff presented sufficient evidence to establish both close temporal proximity and corroboration of a retaliatory motive. The incident occurred on February 10; she filed her formal complaint a few days later during the week ending February 13 or 20. The marked reduction in her weekly hours began the week ending March 12, the third or fourth week after her complaint. This timeline constitutes a sufficient temporal proximity to support an inference of retaliatory motive.

Walgreens' hiring of at least one new employee in plaintiff's position soon after plaintiff's complaint supports an inference that it withheld work time from plaintiff in retaliation for her complaint. Johnson admitted that a new, part-time employee started on February 28, approximately one or two weeks after plaintiff's complaint. He also hired two full-time employees in February and March, without specifying the dates. Plaintiff is entitled to these favorable inferences to defeat Walgreens' motion for summary judgment.

Finally, the "silent treatment" that both managers and co-workers allegedly gave to plaintiff following her complaint further corroborates her claim of retaliation. Silence and rudeness alone may constitute the "petty slights or minor annoyances" that the Court in Burlington, supra, identified as the type of adversity that was not sufficiently material to constitute retaliation. 548 U.S. at 68, 126 S.Ct. at 2415, 165 L.Ed. 2d at 360. Nevertheless, although not constituting retaliation on its own, it indicates an abrupt and distinctive change in attitude toward plaintiff.

In Shepherd, supra, the court held that "evidence of pervasive harassment may make a retaliation claim more credible." 336 N.J. Super. at 419. Here, plaintiff's evidence that her managers and co-workers stopped talking to her after she complained makes her retaliation claim more credible.

We are thus satisfied that the trial court erred in dismissing plaintiff's retaliation claim.

IV.

The trial court's order granting Walgreens' motion for summary judgment on the LAD cause of action based on hostile work environment is affirmed. The court's order dismissing plaintiff's claim of retaliation is reversed, and the matter is remanded for trial on this claim.

Affirmed in part, reversed in part, and remanded.

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